WORKMEN S COMPENSATION ACT

Transcription

1 WORKMEN S COMPENSATION ACT CHAPTER 88:05 Act 24 of 1960 Amended by 12 of of of of of of 1997 Current Authorised Pages Pages Authorised (inclusive) by L.R.O /2006 L.R.O. 1/2006

2 2 Chap. 88:05 Workmen s Compensation Index of Subsidiary Legislation Page Medical Referees Rules of Court (GN 117/1946) 52 Workmen s Compensation (Appeals) Rules of Court 61 Workmen s Compensation (Medical Referees) Regulations (GN 116/1946) 65 Workmen s Compensation Regulations (G ) 72 Note on Adaptation Certain fees in this Chapter were increased by the Commission under paragraph 4 of the Second Schedule to the Law Revision Act (Ch. 3:03). Where this occurs, a marginal reference in the form normally indicating an amendment is made to LN 51/1980 (the Legal Notice by which the President s approval was signified).

4 4 Chap. 88:05 Workmen s Compensation SECTION ARRANGEMENT OF SECTIONS Continued Compensation not payable during period of suspension. Measure of compensation on refusal to be examined or disregard of medical advice. 13. Application for reference to medical referee. 14. Employment of contractors. Indemnity. Notice to contractor of proceedings against principal. Contractor. Control of principal. 15. Remedies against both employer and stranger. Recovery of damages a bar. Indemnity by third party. PART III MEDICAL AID 16. Medical expenses. PART IV OCCUPATIONAL DISEASES 17. Constitution of special Medical Board and compensation in respect of diseases. 18. Liability to pay compensation. 19. Fixing a date from which time is to run, indicating requirements as to giving of notice. 20. Calculation of earnings. 21. Presumption as to cause of death or disablement. 22. Power of Minister to add to or delete from First Schedule. 23. Savings right of workmen to proceed against previous employer. PART V COMPULSORY INSURANCE 24. Compulsory insurance against workmen s compensation claims. 25. Conditions under which liability for payment by insurer arises. 26. Restriction on the grant or issue of licences to carry on trade or business. 27. Bankruptcy of employer. In case of a guarantee bond. Where liability is wholly uninsured.

5 Workmen s Compensation Chap. 88:05 5 SECTION Proof in bankruptcy. Priority. 28. Forgery, etc. of policies of insurance. 29. Definition. PART VI COMMISSIONERS 30. Reference to Commissioners. 31. Judges of High Court to be Commissioners. 32. Application to Commissioner. 33. Powers and procedure of Commissioners. 34. Reference by Commissioner to medical referee. 35. Persons entitled to appear, etc., before Commissioner. 36. Fees. 37. Commissioner to take notes of evidence. 38. Costs. 39. Registration of orders. 40. Registration of agreements. Costs paid by employer to workman s Attorney-at-law to be disclosed. 41. Orders and agreements enforceable as High Court judgments. 42. Effect of failure to register agreement. 43. Appeals. PART VII GENERAL 44. Returns as to compensation. 45. Contracting out. 46. Workmen in employment of Government and of local authorities. 47. Application to persons employed on ships or vessels. 48. General penalty. 49. Rules of Court. 50. Power to make Regulations. FIRST SCHEDULE. SECOND SCHEDULE. L.R.O. 1/2006

6 6 Chap. 88:05 Workmen s Compensation CHAPTER 88:05 WORKMEN S COMPENSATION ACT 24 of An Act to provide for the payment of compensation to workmen for injuries suffered in the course of their employment. Short title and commencement. [124/ /1997]. *[15TH NOVEMBER 1960] 1. (1) This Act may be cited as the Workmen s Compensation Act. (2) (a) Parts I, II, III, VI and VII of this Act came into operation on 15th November, (b) Parts IV and V of this Act came into operation on 9th May, Interpretation. [12 of of / of of 1986]. PART I PRELIMINARY 2. (1) In this Act adult means a person who is not under the age of seventeen years; child of a workman s family means any child of a workman and his wife; and includes any other child (whether or not a child of the workman or of the wife) who is a member of the family of the workman; Commissioner means a Commissioner for Workmen s Compensation; dependants means such child of a workman s family and such other members of a workman s family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent; and includes a dependent female and any other person whom the workman at the time of his death treated as under a duty by him to support in whole or in part. However a person shall not be considered to be a partial dependent of a workman unless he was *See section 1(2) for the dates of commencement of this Act. See section 1(2)(a).

7 Workmen s Compensation Chap. 88:05 7 dependent partially on contributions from the workman for the provision of the ordinary necessaries of life suitable for persons in his class and position; dependent female means a woman who, for not less than twelve months immediately before the date on which the workman died or was incapacitated as a result of the accident, although not legally married to him, lived with him as his wife and was dependent wholly or in part upon his earnings; earnings include any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment; employer includes the Government of Trinidad and Tobago and any body of persons whether incorporated or not, and any managing agent of an employer and the legal personal representative of a deceased employer, and where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act be deemed to continue to be the employer of the workman whilst he is working for that other person: Provided that (a) in relation to a person engaged in plying for hire with any vehicle or vessel, the use of which is obtained by that person under a contract of bailment (other than a hire-purchase agreement) the person from whom the use of the vehicle or vessel is so obtained shall be deemed to be the employer; and (b) in relation to a person employed for the purposes of any game or recreation and engaged or paid through a club, the manager or members of the managing committee of the club shall be deemed to be the employer; insurer means an assurance company in whose case the requirements of the Assurance Companies Ordinance (now repealed) with respect to deposits and guarantees by Ch. 31 No. 19. (1950 Ed.). L.R.O. 1/2006

8 8 Chap. 88:05 Workmen s Compensation Ch. 4:01. Ch. 29:50. assurance companies are complied with or an assurance company which is exempted from any such requirements by virtue of an order made under section 37 or section 38 of that Ordinance; managing agent means any person appointed or acting as the representative of another person for the purpose of carrying on the other person s trade or business, but does not include an individual manager subordinate to an employer; Masters of the High Court means the persons to whom sections 65A and 65B of the Supreme Court of the Judicature Act relate; medical aid means medical, surgical and hospital treatment, skilled nursing services, the supply of medicines and the supply, maintenance, repair and renewal of artificial limbs; medical practitioner means a person registered as a member of the Medical Board under the Medical Board Act; medical referee means a medical practitioner appointed under section 3 as a medical referee for the purposes of this Act; member of a family means wife or husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister; minor means a person who is under the age of seventeen years; outworker means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale, in his own home or on other premises not under the control or management of the person who gave out the materials or articles; partial disablement means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time; Registrar means the Registrar of the Supreme Court, and

9 Workmen s Compensation Chap. 88:05 9 includes the Deputy Registrar, Second Deputy Registrar and Sub-Registrars of San Fernando and Tobago; scheduled disease means any occupational disease specified in the First Schedule; total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement; workman means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour or otherwise, whether the contract was made before or after the commencement of this Act (that is, 15th November 1960), and whether such contract is expressed or implied, oral or in writing, whether the remuneration is calculated by time or by work done, and whether by the day, week, month or with reference to any other period whatever; and includes a person engaged in fishing on board any fishing vessel or in plying for hire with any vehicle or vessel the use of which is obtained by that person under any contract of bailment (other than a hire-purchase agreement) in consideration of the payment of a fixed sum or a share in the earnings or otherwise: Provided that the following persons shall not be regarded as workmen for the purposes of this Act: (a) persons employed otherwise than by way of manual labour whose earnings exceed five thousand dollars a year or such other sum as may be prescribed; (b) persons whose employment is of a casual nature and who are employed otherwise than for the purposes of the employer s trade or business, not being persons employed for the purposes of any game or recreation and engaged or paid through a club; (c) outworkers; (d) members of the employer s family dwelling in his house; (e) members of the Defence Force of Trinidad and Tobago and any auxiliary force attached thereto; or First Schedule. L.R.O. 1/2006

10 10 Chap. 88:05 Workmen s Compensation Second Schedule. Appointment and remuneration of medical referees. (f) members of the Police Service and members (i) of any Police organisation having the general powers of members of the Police Service constituted by law and in respect of whom provision exists in any law for the payment of a gratuity or pension in case of injury or death; or (ii) of any Fire Service. (2) Any reference to a workman who has been injured or has been disabled shall, where the workman is dead, include a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable. (3) The exercise and performance of the powers and duties of a local or other public authority or of any department of the Government shall, for the purposes of this Act unless a contrary intention appears, be considered to be the trade or business of such authority or department. (4) If in any proceedings for the recovery of compensation under this Act it appears to the Commissioner by whom the claim to compensation is to be settled that the contract of service or apprenticeship under which the injured person was working at the time when the accident causing the injury happened was illegal, he may, if, having regard to all the circumstances of the case, he thinks proper to do so, deal with the matter as if the injured person had at the time mentioned above been a person working under a valid contract of service or apprenticeship. (5) Every injury specified in the Second Schedule shall be held to result in permanent injury whether total or partial. 3. (1) The Minister may appoint any medical practitioner to be a medical referee for the purposes of this Act and may revoke any such appointment at any time.

11 Workmen s Compensation Chap. 88:05 11 (2) Any appointment made under subsection (1), or any revocation of any such appointment, shall take effect on the date of its publication in the Gazette. (3) The remuneration of, and other expenses incurred by medical referees under this Act shall, subject to Regulations made under this Act and except so far as they are defrayed by fees received from the parties under this Act, be paid out of public funds. (4) Where a medical referee has been employed as a medical practitioner in connection with any case by or on behalf of an employer or workman or by any person interested in that case by reason of a contract of insurance, guarantee or indemnity, he shall not act as medical referee in that case. (5) The number of medical referees appointed by the Minister shall at no time be less than six. However, a reduction below six of the number of medical referees shall not invalidate any reference to, or any certificate given by, a medical referee. *PART II COMPENSATION 4. (1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as mentioned below, be liable to pay compensation in accordance with the following provisions: Provided that (a) the employer shall not be liable under this Act in respect of any injury which does not disable the workman for a period of at least three days from working for full earnings at the work at which he was employed; (b) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed. Employer s liability for compensation. [36 of 1997]. * See section 1 (2)(a). L.R.O. 1/2006

12 12 Chap. 88:05 Workmen s Compensation (2) For the purposes of this Act, an accident resulting in the death or serious and permanent disablement of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the workman for the purposes of, and in connection with, his employer s trade or business. (3) Where compensation payable under this Act for injury by accident arising out of and in the course of employment is received as such by a workman who is an adult, no action shall be brought against the employer for compensation independently of this Act by such workman in respect of such accident after the expiration of four years from the date on which the cause of action accrued. (4) In awarding compensation for injury under this Act a Commissioner shall take into account any damages recovered by a workman in respect of the same injury. Amount of compensation. Death. [51/1980]. 5. (1) Subject to this Act, the amount of compensation shall be as follows: (a) where death results from the injury, a lump sum of an amount calculated as follows: (i) if the workman leaves any dependants wholly dependent on his earnings, the lump sum shall be a sum equal to thirty-six months earnings; (ii) if the workman does not leave any dependants wholly dependent on his earnings, but leaves any dependants in part so dependent, the lump sum shall be such sum not exceeding in any case the amount payable under subparagraph (i) as may be agreed upon or, in default of agreement,

13 Workmen s Compensation Chap. 88:05 13 may be determined by the Commissioner, to be reasonable and proportionate to the injury to the said dependants; (iii) if the workman leaves no dependants, the lump sum shall be the aggregate of reasonable expenses of the burial of the deceased workman, not exceeding the sum of five hundred dollars; (b) where permanent total disablement results from the injury (i) in the case of an adult, a sum equal to fortyeight months earnings; (ii) in the case of a minor, a sum equal to ninety-six months earnings; (c) where permanent partial disablement results from the injury (i) in the case of an injury specified in the Second Schedule, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the incapacity caused by that injury; and (ii) in the case of an injury not specified in the Second Schedule, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the incapacity permanently caused by the injury: Provided that where more injuries than one are caused by the same accident, the amount of compensation payable under this paragraph shall be aggregated, but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Permanent total disablement. Permanent partial disablement. Second Schedule. Second Schedule. L.R.O. 1/2006

14 14 Chap. 88:05 Workmen s Compensation Temporary disablement. (d) where temporary disablement, whether total or partial, results from the injury, a half-monthly payment payable on the sixteenth day from the date of the disablement, and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter (i) in the case of an adult, of a sum equal to one-third of his monthly earnings, and (ii) in the case of a minor, of a sum equal to one-half or, after he has attained the age of seventeen years, to one-third of his monthly earnings. (2) As regards subsection (1)(a), (b) and (c), there shall be deducted from any sum to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such sum, provided that the total amount to be deducted does not exceed fifty per cent of the lump sum so payable. (3) As regards subsection (1)(d), there shall be deducted from any half-monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of the first half-monthly payment and no half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly earnings of the workman before the accident exceeds half the amount of such earnings as he is receiving in some suitable employment or business after the accident or which, but for his refusal to work in some suitable employment or business, he would have received. (4) On the ceasing of the disablement before the date on which any half-monthly payment falls due, there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.

15 Workmen s Compensation Chap. 88: (1) In this Act, the expression monthly earnings means the amount of earnings considered to be payable for a month s service (whether the earnings are payable by the month or by whatever period or at piece rates) and calculated in accordance with the following rules: (a) where the workman, during a continuous period of not less than twelve months immediately preceding the accident, was in the service of the employer who is liable to pay compensation, the monthly earnings of the workman shall be one-twelfth of the total earnings which have fallen due for payment to him by the employer in the last twelve months of that period; (b) in other cases, the monthly earnings shall be thirty times the total earnings payable in respect of the last continuous period of service immediately preceding the accident by the employer who is liable to pay compensation divided by the number of days comprising such period: Provided that where by reason of the shortness of the time during which the workman has been in the employment of such employer or the casual nature of the employment or the terms of the employment it is impracticable at the date of the accident to compute a rate of remuneration which would be representative of the workman s average monthly earnings, regard may be had to the average monthly amount which during the twelve months previous to the accident was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district; (c) employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed Method of calculating earnings. L.R.O. 1/2006

16 16 Chap. 88:05 Workmen s Compensation at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause. (2) A period of service shall, for the purposes of this section, be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days. (3) Subject to subsection (4), where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his monthly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident. However, the earnings of the workman under the concurrent contract shall be disclosed to any other employer at the time of his engagement with the latter and shall be taken into account only so far as the workman is incapacitated from performing the concurrent contract. (4) Where a workman is employed on stevedoring, lightering or wharf work under contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his monthly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident. (5) Upon request of the workman to the employer liable to pay compensation, that employer shall furnish in writing a list of the earnings of that workman upon which the amount of the monthly earnings may be calculated for the purpose of determining the amount of any payment under this Act. Review. 7. (1) Any half-monthly payment payable under this Act, either under an agreement between the parties or under the order of a Commissioner, may be reviewed by a Commissioner on the application either of the employer or of the workman accompanied by the certificate of a medical practitioner that there has been a change in the condition of the workman or, subject to Regulations made under this Act, on application made without such certificate.

17 Workmen s Compensation Chap. 88:05 17 (2) Any half-monthly payment may, on review under this section, subject to the provisions of this Act, be continued, increased, decreased or ended or, if the accident is found to have resulted in permanent disablement, be converted to the lump sum to which the workman is entitled less any amount which may be deductible under section 5(1). 8. Any right to receive half-monthly payments may, by agreement between the parties or, if the parties cannot agree and the payments have been continued for not less than six months, on the application of either party to the Commissioner, be redeemed by the payment of a lump sum of such amount as may be agreed to by the parties or determined by the Commissioner as the case may be. 9. (1) Compensation payable where the death of a workman has resulted from an injury shall be deposited with the Registrar, and any sum so deposited shall be apportioned among the dependants of the deceased workman or any of them in such proportion as a Commissioner thinks fit, or may, in the discretion of a Commissioner, be allotted to any one such dependant, and the sum so allotted to any dependant shall be paid to him or be invested, applied or otherwise dealt with for his benefit in such manner as a Commissioner thinks fit. (2) Compensation payable where permanent disablement has resulted from an injury and lump sums payable under section 8 where temporary disablement has resulted from an injury shall be deposited with the Registrar, and any sum so deposited shall be paid to the person entitled to it or be invested, applied or otherwise dealt with for his benefit in such manner as the Registrar or, upon reference to him by the Registrar, a Commissioner, thinks fit. (3) Any other compensation payable under this Act may be deposited with the Registrar and, when so deposited, shall be paid by the Registrar to the person entitled. (4) The receipt of the Registrar shall be a sufficient discharge in respect of any amount deposited with him under this Act. Payment of lump sum in lieu of half-monthly payments. Distribution of compensation. On death. Lump sums. Other cases. Receipt of Registrar. L.R.O. 1/2006

18 18 Chap. 88:05 Workmen s Compensation Notice to dependants. [51/1980]. Workman under disability. Variation of order. (5) Nothing in this section shall prevent an employer from making any payment or allowance to a workman pending the settlement or determination of the claim and the Commissioner may, subject to section 5(1), order that such payment or allowance shall be deducted from the amount of compensation payable to the workman under this section. (6) On the deposit of any money under subsection (1), the Registrar may deduct therefrom the actual cost of the workman s funeral expenses, to an amount not exceeding two hundred and fifty dollars, and pay the same to the person by whom such expenses were incurred, and shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before a Commissioner on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied, after any inquiry which he thinks necessary, that no dependant exists, he shall direct the Registrar to repay the balance of the money to the employer by whom it was paid. The Registrar shall, on application by the employer, furnish a statement showing in detail all disbursements made. (7) Where a half-monthly payment is payable under this Act to a workman under any legal disability, a Commissioner may, of his own motion or on application made to him in this behalf, order that the half-monthly payment be paid during the disability to any dependant of the workman or to any other person whom he thinks best fitted to provide for the welfare of the workman. (8) Where, on application made to him in this behalf or otherwise, a Commissioner is satisfied that, on account of neglect of children on the part of a parent, or on account of the variation of the circumstances of any dependant, or for any other sufficient cause, an order of a Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, a Commissioner may make such order

19 Workmen s Compensation Chap. 88:05 19 for the variation of the former order as he thinks just in the circumstances of the case. However, no such order prejudicial to any person shall be made (a) unless such person has been given an opportunity of showing cause why the order should not be made; or (b) in any case in which it would involve the repayment by a dependant of any sum already paid to him. (9) The Attorney-at-law or agent of a person claiming compensation under this Act shall not be entitled to recover from such person any costs in respect of such claim or to claim a lien in respect of such costs on, or deduct such costs from, the sum awarded or agreed as compensation, except such sum as may be awarded by a Commissioner, subject to Regulations made under this Act, on an application made either by the person claiming compensation, or by his Attorney-at-law or agent, to determine the amount of the costs to be paid to the Attorney-at-law or agent. 10. Save as provided by this Act, no lump sum or half-monthly payment payable under this Act shall be capable of being assigned, charged or attached or shall pass to any person other than the workman by operation of law, nor shall any claim be set off against the same. 11. (1) Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after it has happened and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within one year from the occurrence of the accident causing the injury, or, in case of death, within one year from the time of death: Provided that (a) the want of or any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings if the employer is proved to Deductions for costs. Compensation not to be assigned, attached or charged. Notice and claim. [36 of 1997]. L.R.O. 1/2006

20 20 Chap. 88:05 Workmen s Compensation have had knowledge of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy, was occasioned by mistake, absence from Trinidad and Tobago or other reasonable cause; and (b) the failure to make a claim within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from Trinidad and Tobago or other reasonable cause. (2) Notice in respect of an injury under this Act may be given either in writing or orally to the employer (or if there is more than one employer to one of such employers) or to any foreman or other official under whose supervision the workman is employed or to any person designated for the purpose by the employer, and shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which the accident happened. (3) The notice, if in writing, may be given by delivering the same at, or sending it by post in a registered letter addressed to the residence or place of business of the person to whom it is to be given. (4) Where the employer is a body of persons, corporate or not, the notice, if in writing, may also be given by delivering it or by sending it by post in a registered letter addressed to the employer at the office or, if there be more than one office, any one of the offices of such body. Medical examination. 12. (1) Where a workman has given notice of an accident or where an accident has occurred in respect of which the necessity of giving notice under this Act is dispensed with, a workman shall,

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